Yaden v. Gem Irrigation District

• Decision Date: 31 May 1923
• Citation: 37 Idaho 300,216 P. 250
• Parties: L. B. YADEN and ELEANOR B. YADEN, Appellants, v. GEM IRRIGATION DISTRICT, a Corporation, Respondent
• Court: Idaho Supreme Court

216 P. 250

37 Idaho 300

L. B. YADEN and ELEANOR B. YADEN, Appellants, v. GEM IRRIGATION DISTRICT, a Corporation, Respondent

Supreme Court of Idaho

May 31, 1923

IRRIGATION AND WATER RIGHTS-SURPLUS WATERS-DEDICATION OF WATER BY USE-IRRIGATION DISTRICTS-OFFICERS AND DIRECTORS-ULTRA VIRES ACTS-ANNEXATION.

1. Where surplus water is delivered to a land owner outside of an irrigation district, when the same is not required for lands within such district, such land owner does not acquire a vested right to such waters within the meaning of sec. 4 art. 15 of the constitution or C. S., sec. 5638, and is not entitled to the delivery of such water when the same is required for the irrigation of lands within the district.

2. An irrigation district, organized under the provisions of the statute, acquiring an irrigation system, is under no legal obligation to continue to deliver water to persons who have theretofore used the same, but who have not acquired a vested right to the use of such water.

3. Irrigation districts are quasi-public or municipal corporations, and as such have only such powers as are given to them by statute, or such as are necessarily implied.

4. Under the provisions of C. S., sec. 4350, the legal title to all property acquired by an irrigation district by operation of law vests immediately in the district and is held in trust for, dedicated to and set apart to the use and purposes provided by law.

5. The powers of the directors and officers of an irrigation district are prescribed by C. S., secs. 4346 and 4355, and any act done in excess of the express or implied provisions of the statute by such directors or officers is ultra vires.

6. Owners of lands lying outside of the boundaries of an irrigation district may become entitled to the use of waters or acquire an interest in the system of the district by annexation as provided by C. S., secs. 4411 to 4421 inclusive.

APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Charles F. Reddoch, Judge.

Mandamus to compel delivery of water. Writ denied. Judgment for defendant. Affirmed.

Judgment affirmed. Costs awarded to respondent.

William Healy, for Appellants.

Where water has once been used for agricultural purposes under a sale, rental or distribution, the annual use of the same when needed for the irrigation of the land to which it has been applied cannot thereafter be denied. (Art. 15, secs. 1, 4, Const.; C. S., secs. 5556, 5638; Hard v. Boise City Co., 9 Idaho 589, 76 P. 331, 65 L. R. A. 407; Gerber v. Nampa & Meridian Irr. Dist., 16 Idaho 1, 100 P. 80; Id., 19 Idaho 765, 116 P. 104; Niday v. Barker, 16 Idaho 73, 101 P. 254; Russell v. Irish, 20 Idaho 194, 118 P. 501; Knowles v. New Sweden Irr. Dist., 16 Idaho 217, 101 P. 81.)

Priority of right of distributees under a canal is governed by priority of settlement and improvement of land and application of water to beneficial use. (Sec. 5, art. 15, Const.; Gerber v. Nampa & Meridian Irr. Dist., supra; Mellen v. Great Western Beet Sugar Co., 21 Idaho 353, Ann. Cas. 1913D, 621, 122 P. 30; State v. Twin Falls Canal Co., 30 Idaho 41, 166 P. 220; Brose v. Nampa & Meridian Irr. Dist., 24 Idaho 116, 132 P. 799.)

Irrigation district law does not prohibit the distribution of water to land outside the district. (Settlers' Irr. Dist. v. Settlers' Canal Co., 14 Idaho 504, 94 P. 829.)

Irrigation district in the administration of its system exercises proprietary rather than governmental powers. (City of Nampa v. Nampa & Meridian Irr. Dist., 19 Idaho 779, 115 P. 979; Noon v. Gem Irr. Dist., 205 F. 402.)

Plaintiffs' land may be brought into the district and subjected to same burdens as all other lands. (Indian Cove Irr. Dist. v. Priedeaux, 25 Idaho 112, Ann. Cas. 1916A, 1218, 136 P. 613; Nampa & Meridian Irr. Dist. v. Briggs, 27 Idaho 84, 147 P. 75.)

Thompson & Bicknell and John C. Rice, for Respondent.

An irrigation district organized under the laws of the state is a public or quasi-public or municipal corporation. (Hurtle v. Ball, 9 Idaho 193, 72 P. 953; City of Nampa v. Nampa & Meridian Irr. Dist., 19 Idaho 779, 115 P. 979; Colburn v. Wilson, 23 Idaho 337, 130 P. 381; Pioneer Irr. Dist. v. Walker, 20 Idaho 605, 119 P. 304; Gem Irr. Dist. v. Van Dusen, 31 Idaho 779, 176 P. 887; In re Madera Irr. Dist., 92 Cal. 296, 27 Am. St. 106, 28 P. 272, 14 L. R. A. 755.)

The officers of an irrigation district are creatures of the statutes and have no powers other than those expressly given by law and those implied as necessary for the execution of the powers expressly given. (Stimson v. Allesandrow Irr. Dist. (Cal.), 67 P. 496; Evans v. Swendsen, 34 Idaho 290, 200 P. 136; Kootenai County v. State Board of Equalization, 31 Idaho 155, 169 P. 935; State v. Deschutes Land Co., 64 Ore. 167, 129 P. 764; Olmstead v. Carter, 34 Idaho 276, 200 P. 134; C. S., sec. 4350.)

The extent of the powers granted to the directors of an irrigation district is to take all necessary measures within the law to acquire and construct the necessary irrigation works that sufficient water may be furnished to each land owner in the district for irrigation purposes. (C. S., sec. 4355.)

The officials of the district are without power under the law to make any use of its works and water rights for the benefit of lands outside of its boundaries and upon which the cost of the works has not been apportioned. Such a breach of trust if successful would result in taking property from the real owners thereof without due process of law. (Jenison v. Redfield, 149 Cal. 500, 87 P. 63.)

Furnishing water to lands outside of the district constitutes a breach of trust by the officers of the district under the law. Appellants were bound to know that they had no legal right to receive water from the district. They acquired no legal right based upon a breach of trust of which they had notice. (Jenison v. Redfield, supra; Wiel on Water Rights, 3d ed., sec. 1357; Merchants' Nat. Bank v. Escondido Irr. Dist., 144 Cal. 329, 77 P. 937.)

An irrigation district may acquire works burdened with the necessity of supplying water, the right to which has already been acquired, outside the boundaries of the district, but otherwise have no power under the law to furnish water to lands outside its boundaries. (Settlers' Irr. Dist. v. Settlers' Canal Co., 14 Idaho 504, 94 P. 829; Gerber v. Nampa & Meridian Irr. Dist., 19 Idaho 765, 116 P. 104; Niday v. Barker, 16 Idaho 73, 101 P. 254; Nampa & Meridian Irr. Dist. v. Briggs, 27 Idaho 84, 147 P. 75.)

Appellants could only obtain a legal right to share in the waters of the Gem Irrigation District by having their lands annexed to the district and subjecting them to their proportionate share of the cost of the works and of the maintenance charges of the district under the provisions of the statutes. (C. S., secs. 4411, 4413, 4415.)

Any temporary deliveries of water at times when the water users are not using it cannot be turned into a perpetual water right by the person to whom such deliveries are made. (Gerber v. Nampa & Meridian Irr. Dist., 16 Idaho 1, 100 P. 80.)

BUDGE, C. J. William A. Lee and Wm. E. Lee, JJ., concur.

OPINION

BUDGE, C. J.

This action was brought to obtain a writ of mandate to compel respondent to deliver water to appellant's land and to recover damages for loss of crops as a result of respondent's failure and refusal so to do. The cause was tried to the court and judgment was entered in favor of respondent from which judgment this appeal is prosecuted.

Throughout this opinion the use of the word "appellant" will be taken as referring to Eleanor B. Yaden.

The facts are substantially as follows: Respondent district was organized in 1909. Its irrigation works consist of a pumping plant on Snake River, from which stream the district diverts water into three main canals. One of these canals, known as "A" Canal, extends in a westerly direction and is approximately 25 miles in length. Beyond the westerly termination of this canal is a stream called Succor Creek, which flows in a northeasterly direction into Snake River. To the northwest of this stream lie certain lands which were included in the district as originally organized but subsequently withdrawn. In 1912 an assessment of benefits was made and the cost of acquiring the works was apportioned and confirmed by court decree. At that time no lateral had been constructed to irrigate the lands lying beyond Succor Creek. In 1913 appellant made a desert entry of lands, all of which except ten acres lie on the northwest side of Succor Creek and without the boundary lines of respondent district. In 1913 and 1914 respondent district completed the construction of a lateral across and beyond Succor Creek and below appellant's land. This lateral is known as A-10A and is a branch of the "A" Canal. It crosses Succor Creek by means of a buried syphon. This syphon was constructed in 1913. From this lateral about fifty acres of appellant's land is susceptible of irrigation. The lateral beyond the syphon was built the following year and after appellant had perfected her entry. It would seem that this lateral and syphon were constructed for the purpose of irrigating lands that were then, but not now, within the district, and thereby a portion of the Yaden land became susceptible of irrigation from that source. From 1914 to 1917 inclusive, water was delivered through this lateral and syphon, a portion of which was used upon appellant's land. In 1917 appellant paid to respondent district the required charges for the delivery of water to land then under cultivation. In 1918 respondent district demanded and received from appellant a note secured by a crop mortgage covering the maintenance assessment for that year. During the early irrigation...